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August 3, 2009

Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?

As detailed in this Bloomberg news piece and this official press release from the office of Manhattan District Attorney Robert Morgenthau, today former New York Giants receiver Plaxico Burress was indicted "on charges of possession of a loaded pistol and reckless endangerment in connection with an incident in which he shot himself in the leg at a Manhattan nightclub." Here are more sentencing details from the Bloomberg report:

After shooting himself, Burress was initially charged with two counts of possession of an unlicensed handgun. His trial was delayed until Sept. 23 when Morgenthau decided to present the evidence to the grand jury. Morgenthau told the New York Post on July 27 that Burress agreed to serve a year in jail and that prosecutors insisted on two.

If convicted, Burress faces from 3-1/2 years to 15 years in prison for each gun count. The maximum prison sentence for reckless endangerment is one year, according to Morgenthau. He will be arraigned in New York state court. No date is scheduled.

As I have highlighted in some prior posts, I think anyone seriously and deeply committed to enforceable invidivudal right to possess a gun for self-protection ought to be greatly troubled by both the decision to criminally prosecute Burress and by the considerable prison terms being threatened in this case. Though a few Second Amendment fans have previously express some concern for Plaxico's plight, I will be interested to see if more start coming to his defense now that he has been formally indicted.

Comments

I think one of the problems, Doug, is that Plax is being indicted under a state law. I am genuinely torn on whether the Second Amendment should be applied to the states. Additionally, Plax simply flouted the law. He didn't file a lawsuit--he just arrogated unto himself the right to break the law. That could account for a lot of reticence in defending him.

I do agree that the law here is way too harsh. Plax obviously didn't mean to use the gun offensively, and a lot of violent criminals get less time than he is facing. I personally don't think Plax belongs in jail. He's just not the most sympathetic character in the world.

Posted by: federalist | Aug 3, 2009 6:51:10 PM

Also, the reckless endangerment charge at least is well supported.

Alaska has no licensing requirement at all for concealed carry, yet if the exact same actions were committed here I would expect such a charge.

People who don't respect firearms and firearms don't mix well.

Posted by: Soronel Haetir | Aug 3, 2009 8:20:44 PM

Good points, federalist and Soronel, though they highlight the deep challenge facing any and everyone who is seriously and deeply committed to enforceable invidivudal constitutional right to possess a gun for self-protection.

Plaxico surely was VERY sloppy in the way he sought to exercise his right to possess a gun for self-protection. But his injury, job loss, economic hit and a reckless endangerment charge seem plenty enough punishment for his imperfect efforts to be prepared to fend off the (many?) persons who might pose a real threat to him in a Manhattan nightclub. Though there may be aspects of his personality that make Plaxico "not the most sympathetic character in the world," the essential facts of his case would seem to make him the poster child for enforceable Second Amendment gun possession rights based in the right to armed self-protection. If the Second Amendment fans are not willing or able to make arguments on behalf of Plaxico on these facts, I will continue to wonder if and when these fans will ever take on any truly challenging cases in defense of rights often claimed to be soooooo important and fundamental.

As I have said before and will say again, I cannot readily credit assertions that a right is important and fundamental if folks making these assertions are unwilling or unable to seek to protect the rights for anyone other than the privileged and powerful. (The special irony here, of course, is that Plaxico is privileged and powerful and yet he still gets no Second Amendment love).

Posted by: Doug B. | Aug 3, 2009 9:08:49 PM

Federalist said: "Additionally, Plax simply flouted the law. He didn't file a lawsuit--he just arrogated unto himself the right to break the law."

Why should Plax, or anyone else, have to file a lawsuit to enforce a constitutional right? If he has an individual, constitutional right to bear a firearm, and if that right can be enforced against the states, why can't he just exercise it by bearing a firearm? Why should he need to ask for permission first? Sure, once he gets caught he'll have to defend himself, and now he will. But (especially where there's lots of other things to criticize), why should he be criticized for that?

Posted by: Anon | Aug 3, 2009 11:08:10 PM

I think one of the problems, Doug, is that Plax is being indicted under a state law.

There is a serious second amendment problem with jail time for carrying a gun, or any punishment for that matter. In Heller, J. Scalia actually defined the "bear" in "right to bear arms" as to carry in one's pocket. It simply cannot be a crime to exercise a fundamental right, i.e. carrying a gun for self protection.

If self-proclaimed gun rights supporters do not defend Plax, they are not truly gun rights supporters. Plax actually said he was carrying the gun for self-defense. The gun was licensed in FL with and legal to carry in 30-some other states. If the invidivudal right to possess a gun for self-protection is fundamental, the right applies to the States and Plax should walk.

The cases that hold that the second amendment doesn't apply to the States were written before the incorporation doctrine even existed. One, Presser v. IL, even stated that the first amendment didn't apply to the states. And, I think we know how that turned out.

Posted by: Carl | Aug 4, 2009 11:24:44 AM

Somehow I don't see the court we have being honest and saying that the 19th century open carry cases are still good law. They've already endorsed licensing requirements that aren't arbitary.

If that non-arbitrariness requirement is applied to the states I do expect NYC's regulations to run into trouble. From what I've seen they have perhaps the very model of arbitrary regulation, requiring someone to be vouched to be of good moral character for firearms ownership.

Posted by: Soronel Haetir | Aug 4, 2009 11:58:17 AM

My position is that the Second Amendment was incorporated by the 14th. In addition, the right to bear an arm or arm a bear is one of the unenumerated rights which is protected by the 9th Amendment. Some things at the time of the Founding, and in the minds of the Framers of the 14th Amendment as well, were thought to be fairly well sacred. General Grant included in the surrender terms, without request by Lee, that all officers could take their sidearms home with them. These men were on parole. Many of these paroled treasonaous soldiers traveled through the District of Columbia on the way back to their homes and farms. Today no saint, no cop from another jurisidiction, no soldier, no citizen, can pass through the District of Columbia with a sidearm and not get prosecuted for a felony.

Now this Plaxico character who walks into a bar with a loaded gun and shoots himself in the foot poses a problem. But he still has Second Amendment, and unenumerated rights, to bear arms to protect himself while out on the streets. If he is in his home the 4th Amendment bears some mention. The Mayor gives all of us good reason to avoid his unfair city but local peculiarities should not override our constitutional rights. Sports figures can probably relate to the notion that NY is inhospitable. The sports teams of New York had good reason to flee to LA, Frisco and New Jersey. I do not suppose that the right to bear arms was a consideration in those respective moves. The Dodgers were tired of being called "bums" in their own town though, and that is a fact. This new lesson from the Mayor should be that no one, including sports figures, need spend their entertainment dollars in the Big Apple and risk a mugging. I witnessed a mugging in NY where an off duty copy would not intervene because she was off duty. A couple of boys from the midwest had to stop a woman from getting beat up by a huge pervert.

This Plaxico guy needs to assert some defenses to these statutes and those of you who do not think that the right to bear arms is civilized will probably be willing to give up free speech and other natural rights upon flimsy pretext down the road.

Posted by: mpb | Aug 4, 2009 12:04:18 PM

I have a right to free speech but cannot yell "fire" (accidently, jokingly, or whatever) in a bar, as it were. Asuming I have a right to carry a loaded gun to protect myself in a bar, I have no right to discharge it (accidentally or not) in the bar without reason. Rights carry responsibilities. He's lucky the discharge didnt' kill anyone; if so in Oregon at a minimum manslaughter II with a minimum mandatory 6 years (and no good time). Defendant guilty of reckless endangerment at least. That he shot only himself I view as partially mitigating. Judge Levine imposes a sentence of three years probation with 90 days jail time, and mandatory firearms training. Call the next case.

Posted by: Michael R. Levine | Aug 4, 2009 12:20:54 PM

I am sorry but this case has nothing do to with the second amendent. Plaxico Burress went to a bar with a loaded gun and shot himself. He put himself and people at risk. Plaxico Burress deserves to be punished and do jail times. Three years for putting a lot of people at risk is not a long time.

Posted by: Jim | Aug 4, 2009 12:49:09 PM

Let's get precise here, gang, especially in light of the multiple charges brought back by the grand jury. Plaxico may well deserve punishment and certainly can be constitutionally punished for unjustified risks he created with a loaded gun in the bar, and that's what the charged crime of reckless endangerment covers. Of course, this crime does not depend on gun possession --- he might have had a (sharp-edged) pocket bible and US constitution in his sweatpants and, if he started throwing them around the bar to ward off imagined foes, perhaps he could have been guilty of reckless endangerment under NY law.

But Plaxico could not be constitutionally punished at all simply for possessing a (sharp-edged) pocket bible and US constitution in a NYC bar, and I think we would all be aghast if he was facing 3-1/2 years to 15 years in prison for two counts of possessing these constitutionally protected items. Now, in the wake of Heller declaration that a gun is a constitutionally protected item under the Second Amendment, I ask whether and why we should not be greatly troubled by subjecting Plax to 3.5 or more years in prison simply for possessing this item.

If I were representing Plax, I would contest the gun possession counts on constitutional grounds and then perhaps agree to a deal with a plea to reckless endagerment. This would seem like a sensible resolution on these fact, and one that I think any and all Second Amendment fans should be urging.

Posted by: Doug B. | Aug 4, 2009 2:00:39 PM

However, is Plaxico Burress legal allowed to carry a gun? I mean, there are laws that state that you can not carry a concealed weapon unless you have a permit. If he is not legally allowed to carry a concealed weapon, he is gulity of gun possession.

Posted by: Jim | Aug 4, 2009 2:13:43 PM

You asked who I am. I am an ordained minister. The problem is not with Plaxico, but with the law in New york. It is contrary to the second amendment. Certainly all parts of the constitution and amendments pertain to all the states. Otherwise, the constitution is meaningless. As a two-handgun owner, I support the second amendment with my whole being and with my blog:
http://ricks-constitutionofourforefathers.blogspot.com/

In addition, State laws which require licensing too many time make it difficult. All that is needed is a simple test to determine whether or not a person can use a weapon properly and a background check. I am trying to take a test in Kansas to qualify for my cc license and I can not get ammunition for my semi-automatic to take the test which required 50 cartridges.

With state laws so limiting, how can I constitutionally protect myself with my handgun locked in a safe at home with a trigger lock, when I am in a public place.

The laws that convicted Plaxico are totally unconstitutional, as I hope all gun owners will come to see. Please back him up.

I think the point federalist and jim are raising is an interesting one. I am sympathetic to the notion that if a law is unconstitutional it's unconstitutional regardless of whether or not the courts have gotten around to saying so. But that is not the perspective the courts themselves take, which is basically something's not unconstitutional until the court has said so. The question then is NYC law a violation of clearly established constitutional law. I hesitate to go so far as to say yes. Therefore, I am forced to side with federalist and jim.

Doug may be right in the abstract and I think he makes a good case. But that doesn't help Burris.

Posted by: Daniel | Aug 4, 2009 5:21:28 PM

However, do we want people carring guns 24/7. If anything, this would increase the chances of gun violence. I am not against people owning guns and keeping them at home. I just have a problem with people carrying guns with then everywhere they go. I would think that this is a recipie for disaster.

Posted by: jim | Aug 4, 2009 6:08:11 PM

" I just have a problem with people carrying guns with then everywhere they go. I would think that this is a recipie for disaster."

Are you serious? I take it that you never have been held up at gun point? I have a concealed carry in NC and the only place I don't take my hand gun is the places that the State of North Carolina tells me not to. As so many people on this blog like to say if you don't like the Second amendment then have it changed. Just for the record I agree with Doug about taking a plea for endangerment. Not a big fan of Plaxico but even he has 2A rights.

Posted by: Anon | Aug 4, 2009 7:30:40 PM

"Are you serious? I take it that you never have been held up at gun point? I have a concealed carry in NC and the only place I don't take my hand gun is the places that the State of North Carolina tells me not to. As so many people on this blog like to say if you don't like the Second amendment then have it changed. Just for the record I agree with Doug about taking a plea for endangerment. Not a big fan of Plaxico but even he has 2A rights."

I never claimed to be against the second amendment. What I am saying is that people carrying guns 24/7 can be a recipe for disaster. If people are carrying guns with them then I want to make sure that they know what they are doing. And yes, I do question the need to carry a gun 24/7.
Furthermore, I never claimed to be against Plaxico owning a gun. However, there is a question as to whether or not he can legaly carry a concealed gun.

"

Posted by: Jim | Aug 4, 2009 11:18:58 PM

Federalist said Plax should be criticized for exercising his right to bear arms without first filing a lawsuit "Because, as things stand now, it's illegal. Thats why."

So was riding in the front of the bus or sitting at a lunchcounter if you were black in the south at a certain time. Should the folks who did it anyway be criticized because they just did it, and didn't file a lawsuit first?

Posted by: Anon | Aug 5, 2009 8:28:48 AM

Forget about the fans of the 2nd Amendment. How did his lawyer not refer to the Constitution to get this case thrown out, and highlight state gun law's unconstitutionality?

U.S. judges, democrats, republicans, are corrupt for not following the Constitution. VOTE LIBERTARIAN

Posted by: william johnson | Aug 20, 2009 2:53:57 PM

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